Whittle v. General Mills Inc.

October 24, 1952

WHITTLEv.GENERAL MILLS, INC.

Duncan

DUNCAN, Justice. This action originated before the Workmen's Compensation Board where appellant sought an award on account of injuries alleged to have resulted from an accident arising out of and in the course of his employment with appellee.

Two defenses were interposed: (1) that appellant's injuries, if any, did not result from accident arising out of and in the course of employment, (2) that appellant failed to give timely notice of the accident as required by the provisions of KRS 342.185.

The full Board sustained the second defense and dismissed the application. This order was affirmed upon appeal to the circuit court.

Inasmuch as the only question determined by the Board related to the sufficiency of the notice, it is our view that this is the only question presented on the appeal. We shall relate only such facts as are necessary for a determination of the single question.

Appellant claims to have sustained an injury in early February, 1949, while employed by appellee. He states that while lifting a hundred pound sack of flour and twisting with it to his left to put it on the scales, he felt a burning sensation in his back. He made no report of the accident at the time of its alleged occurrence. He continued doing the same type of work for about three weeks thereafter without complaint to his employer.

Appellant then remained at home for a period of five days, claiming that his absence was due to sickness. During this five-day period appellant was examined on February 26, 1949, by Dr. Goldstein and was advised that he was suffering from a herniated disc.

Upon his return to work appellant continued his silence concerning his alleged accident and did not advise his employer of Dr. Goldstein's diagnosis. Some two months later he complained of pains in his back and was assigned to lighter duties.

On May 27, 1949, appellant of his own volition went to see Dr. C. H. Likens as a private patient and not upon reference from his employer. He was again advised that he was suffering from a herniated disc and within a few days thereafter appellant voluntarily quit work. In his interview, appellant advised appellee's personnel manager that he had not suffered any injury on the job.

A few days after his first interview with appellant Dr. Likens revised his original diagnosis and informed appellant his injury was congenital. A few days later appellant saw Dr. Franklin Jelsma and was again advised that he was suffering from a herniated disc. He submitted to an operation and the disc was removed on June 28, 1949.

Five weeks after his resignation from appellee's employ and some five months after his alleged accident, appellant for the first time notified appellee of his claimed injury. KRS 342.185 provides in part as follows:

'No proceeding under this chapter for compensation for an injury or death shall be maintained unless a notice of the accident shall have been given to the employer as soon as practicable after the happening thereof * * *.'

In Kaufman-Straus Co. v. Bennett, 275 Ky. 264, 121 S.W.2d 1, the employee claimed to have been injured in a fall from a ladder. He continued work for some three months after the accident, being treated in the meantime by a chiropractor and a doctor. Each of them gave a different diagnosis of his trouble. Eleven days before leaving his employment he visited a Dr. Goldbery who diagnosed his injury as a fractured or dislocated vertebra. Some six weeks after leaving his employment and about four and a half months after the injury, he asserted a claim for compensation. This court denied the claim on the grounds of failure to give the statutory notice.

In Buckles v. Kroger Grocery & Baking Co., 280 Ky. 644, 134 S.W.2d 221, 223, Buckles claimed that he had been injured on November 4, 1937, while lifting a crate of vegetables. He told two of his fellow employees about the injury and they helped him fill out a compensation claim. Buckles, however, did not file the claim with his employer until January 3 or 4. In the meantime, on November 10, 1937, he had seen a doctor and had been advised that he had a hernia but was in no immediate danger.

The compensation board denied Buckles' claim on account of his failure to give notice as soon as practicable. This view was affirmed by the lower court and the Court of ...

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